Newsletters Total Records:  35 11/11/2006  IDLA AGM & Dinner IDLA AGM & Dinner The Associations AGM and dinner will be on Monday 5 March 2007. New venue has been choosen, The Limes Hotel at Needham Market. Full info will be sent to all members. We wish you all a Merry Christmas and a Happy Healthy Prosperous New Year!! Best wishes for 2007. 11/11/2006  Notice to terminate Tenancy Section 21 Which period matters? One area that receives repeated attention in court cases and appeal hearings is the precise requirements of serving the periodic section 21 notice, a notice under section 21(4). In the latest case, through a succession of assured shorthold tenancies Meya let a flat from the Church Commissioners from 1995 to 2004. In 2004 the last assured shorthold tenancy was granted to expire on the 30 December 2004 at “a clear yearly rent of £17,680 pa” payable “by equal quarterly payments in advance on the usual quarter days” (The usual quarter days are 25th December, 25th March, 24th June and 29th September). When this assured shorthold finished Meya remained in possession under a statutory periodic tenancy. On the 2nd March 2005 the Church Commissioners served a notice under section 21(4)(a) of the Housing Act 1988 stating “the landlord requires possession of the property after the 30th May 2005 or at the end of that period of your tenancy which will end after the expiry of two months from the giving of this notice whichever is the later”. When they then issued possession proceedings on the 4th July 2005 the court had to consider whether the statutory periodic tenancy was annual or quarterly in order to ascertain whether the notice given was correct. The decision came down to the interpretation of Section 5(3)(d) of the Housing Act 1988 which expresses the periods of the statutory periodic tenancy created under section 5(2) as being the “the same as those for which rent was last payable under the fixed term of the tenancy”. The court of appeal attached significance to the word “last” which meant that it was not simply a question of the period for which rent was payable under the fixed term (in Meya’s case this could have been annual or quarterly). Instead there are two questions, first what payment of rent was the tenant last obliged to make under the fixed term and second which period was covered by this last payment. Applying this approach the court found that the last payment under the tenancy had been in September covering the last quarter of the year. Therefore the statutory periodic tenancy created after the termination of the assured shorthold was quarterly. Since annual rents and quarterly payments are not the most common scenario for statutory periodic tenancies it is pertinent to see what lesson the case gives for more common monthly rents. Applying the logic, if a fixed term tenancy is granted with a rent expressed to be £300 per week payable monthly then this would mean that the courts would look at the last rent payable and see that it covered a period of one month therefore creating at the end of the fixed term a monthly statutory periodic tenancy. There are three other points of note which can be taken from this case. The first is that this case turned on the interpretation of section 5(3)(d) of the Housing Act 1988; had the tenancy been outside this Act then the answer would have followed the common law and the annual rent would have led to an annual periodic tenancy. The second point is that the Church Commissioners were relying on their saving clause and did so successfully. This demonstrates the usefulness of saving clauses since the date they had specified was not the day before a quarter day which it should have been to be the end of the period. The final point is that the notice given to Meya by the Church Commissioners was technically wrong for even a quarterly tenancy. A quarterly tenancy requires a quarter’s notice and their notice only provided for 2 months’ notice in the saving clause. As luck would have it the dates worked out and the saving clause, plus their delay in seeking possession, was sufficient. This is not likely to be an issue where the period of the tenancy is monthly. This case only considered the length of the period in a statutory periodic tenancy. However, applying the “last” payment of rent interpretation may give a strong guide as to how to avoid any problems there too. As always, to avoid any doubt or problems, simply make the last day of the fixed term the last day of a rent payment period. 26/10/2006  New Fire Safety Rules New Fire Safety Rules The Government has reviewed current fire safety law, and new fire safety rules affecting all non-domestic premises came into effect on October 1st 2006. The Regulatory Reform (Fire Safety) Order 2005 was approved by Parliament on 7 June 2005. The Fire Safety Order will only apply in England and Wales. Northern Ireland and Scotland will have their own laws. Emphasis on Fire Prevention The main effect of the changes will be: · a move towards greater emphasis on fire prevention in all non-domestic premises, including the voluntary sector and self-employed people with premises separate from their homes. · Fire certificates will be abolished and will cease to have legal status. · Responsibility for complying with the Fire Safety Order will rest with the 'responsible person'. In a workplace, this will be the employer and any other person who may have control of any part of the premises, for example, the occupier or owner. In all other premises the person or people in control of the premises will be responsible. If there is more than one responsible person in any type of premises, all must take all reasonable steps to work with each other. This would occur if several businesses shared a block of offices. · The responsible person will have to carry out a fire risk assessment which must focus on the safety in case of fire of all 'relevant persons' including the disabled and those with special needs. The fire risk assessment will help identify risks that can be removed or reduced and the nature and extent of the general fire precautions that will be needed to protect people against the fire risks that remain. If five or more people are employed then there must be a record of the significant findings of the assessment. Responsibility for enforcement of the new rules will be with the local fire and rescue service authority who will carry out regular inspections with top priority going to those premises presenting most risk to the community. How will the changes affect the letting sector? Although the changes represent the biggest overhaul of fire safety legislation for the commercial environment, there will be little effect for most domestic premises which are largely excluded from the legislation. However, since many letting businesses operate from commercial premises, the employer will need to review fire safety procedures. In addition, the new Fire Safety Order will affect blocks of flats or a house divided into bedsits or self-contained flats since the ‘workplace’ health and safety legislation applies to the common areas in these types of property where there is a degree of open and regular access for maintenance and cleaning – areas such as entrance halls, stairways and lifts 19/09/2006  Housing Benefit to Change Local Housing Allowance – Where now? The system of paying housing benefit is in the process of changing. The old system (Housing Allowance to be technically correct) is to be phased out and replaced by Local Housing Allowance (LHA). LHA is currently being trialled in 18 local authorities (Pathfinder areas) in preparation for a national roll-out at or beyond April 2008. Legislation to enable this is currently before Parliament. The Pathfinder areas have provided valuable information about the working of the scheme and the national scheme will not be exactly the same as the Pathfinder scheme. The two main differences between Housing Allowance and LHA are that Housing Allowance looks at the value of the property, as well as the circumstances of the tenant, in deciding how much benefit to pay. LHA simply pays a fixed amount of money based on the size of property a family needs, regardless of the actual rental due to the landlord. Secondly, LHA will in most circumstances be paid directly to the tenant and the old system of simply paying the landlord because the landlord or tenant wanted it will not normally happen. The Pathfinder areas have brought up a number of problems and the system has had the following changes made to it to accommodate these changes: 1) Although the tenant will be allowed to keep some surplus if the benefit is higher than the rent, this will now be limited. Under the pathfinder scheme claimants could keep any surplus where as it is now proposed to cap this surplus and they will only be allowed to keep £15 of the surplus. This could work against the aim of encouraging tenants to go for cheaper houses as there is no longer any reason to go for a house less than the capped amount below the fixed payment. Indeed it could encourage landlords to increase rents on poorer properties to this level knowing that tenants will not lose any money. Research in some London areas indicated that rents had increased by almost 60% with the introduction of LHA. Other London areas without LHA had only increased only a few percent. 2) Instead of paying the “mid point” (half way between top and bottom levels) they will now only pay the “median” rent. Median is the technically the middle point on the range of rents. Quite how they envisage this will differ from the previous system remains to be seen. The Median is different to the average (where the number of rents at a specific level will be considered). Median could result in a higher, (if the are many lower priced properties), or lower, (if there are many high priced properties), result than the average. In areas where there is a large benefit claiming population dominating the lower end of the price range this should prevent the effect of increasing the benefit paid as the rent paid by benefit claimants is ignored in the calculation of local reference rents (taking away a large number of lower values). 3) They will now decide the house size, and therefore LHA level, based only on bedrooms, not looking at any entitlement to living rooms. LHA effectively stops looking at the number of living rooms and whether a tenant is over accommodated. This is to make it easier to calculate entitlement as most houses are advertised by number of bedrooms. 4) LHA will be given only to new claimants. This could cause a moving of tenants to get what could be perceived to be an additional benefit (the surplus benefit to keep). Normally a move of house can now be considered a change of circumstance and not a new claim but they are saying they will probably allow a new claim to get people across to the new scheme. Evaluation of the LHA pathfinders so far shows the following: 1) 6 out of 10 tenants get all their rent paid by LHA, as opposed to 4 out of 10 on Housing Allowance. 2) 87% or LHA is paid directly to tenants, as opposed to 40% under Housing Allowance. 3) The average shortfall has fallen from £24 a week to £17 a week 18/08/2006  Housing Act 2004 Interim Management Orders Beware of evicting tenants! One of the less publicised elements of the Housing Act 2004 involves the use of Interim Management Orders (IMO). The press has recently been shouting about Empty Dwelling Management Orders (EDMO), where a Local Authority can take over the management of empty properties, and IMOs are similar but the house does not have to be empty. The idea is that if a landlord is not managing the property well, for example by allowing the property condition to become hazardous, the Local Authority can take over running the property to secure the health, safety or welfare of the tenants and others affected. What has received less attention, but is still contained within the provisions of the Act is that if a landlord threatens to evict, or presumably actually tries to evict, a tenant to avoid licensing, then the Local Authority has the power to use an Interim Management Order to prevent this happening. The power to do this is contained in sections 102 and 104 of the Housing Act 2004. Section 102 allows for the use of a management order where there is a threat to the health and safety of the occupiers. Section 104 says: “ (1) This section explains what “the health and safety condition” is for the purposes of section 102. (2) The health and safety condition is that the making of an interim management order is necessary for the purpose of protecting the health, safety or welfare of persons occupying the house, or persons occupying or having an estate or interest in any premises in the vicinity. (3) A threat to evict persons occupying a house in order to avoid the house being required to be licenced under Part 2 may constitute a threat to the welfare of those persons for the purposes of subsection (2).” The first case of this happening has already occurred where South Tyneside took control of a property at which a landlord asked a tenant to vacate within the next 4 days, clearly ignoring legal requirements for the correct notice as well. This was done so that the landlord would not have to license the property. The tenant, naturally, went to the council to discuss being re-housed and this resulted in the enforcement action against the landlord. Presumably the Interim Management Order could also be considered in deciding if the landlord was a fit and proper person for future licence applications. “Natural Wastage”, where a tenant chooses to leave a property and therefore the property would not need a licence, would not fall into the same situation and would be acceptable. However, even the use of the correct notice and court procedure to evict would allow the Local Authority to take this sort of action, if the reason is to avoid needing to be licensed. To make sure this avenue is not left open, great care should be exercised if an eviction will result in a property not needing a licence. For example, telling the tenant that if you evict for rent arrears you will be better off as you are not getting any rent for that room anyway and at least you won’t need a licence, could land you in trouble. First Prev   1234567of 7  Next Last